Opinion · Nclaw North Carolina
EASON v. BILLUPS, 65 N.C. 216 (1871)
65 N.C. 216
- Type
- Opinion
- Court
- Nclaw North Carolina
- Jurisdiction
- Nclaw
- Date
- 1871-01-01
- Topic
- general
EASON v. BILLUPS, 65 N.C. 216 (1871) LOUISA EASON, ADMINISTRATRIX v. JOSEPH R. BILLUPS, ADMINISTRATOR,ROBERT J. SAUNDERS AND OTHERS.Supreme Court of North Carolina January Term, 1871.
Citator
UpLaw has not yet analyzed EASON v. BILLUPS, 65 N.C. 216 (1871). The absence of a flag is not a finding that it is good law.
EASONv. BILLUPS,65 N.C. 216(1871)
LOUISA EASON, ADMINISTRATRIX v. JOSEPH R. BILLUPS, ADMINISTRATOR,
ROBERT J. SAUNDERS AND OTHERS.
Supreme Court of North Carolina
January Term, 1871.
It is error in an order to refer the matters in controversy in a suit without the consent of the parties to the attorney of one of them, it being the same as if the reference were made to the party himself.
It is not strictly a petition to rehear because no error in matter of law is complained of. The error is in a matter of fact and relief can be given upon a petition in the nature of a petition to rehear, or upon a motion to set aside the orders and decree; provided a fact existed in the proceeding which was not called to the notice of the Court and which, had it been made known, would have prevented the original order.
It is alleged as a fact and admitted that Jonathan W. Albertson, to whom the order of reference was made, and Jonathan W. Albertson, the Attorney of the plaintiff, is the same person. So in fact the order of reference was made to the Attorney of the plaintiff and the error is the same as if the reference had been made to the plaintiff himself.
In the absence of any allegation, that the reference was made to Mr. Albertson by the consent of the defendants there is error and the order, etc., must be set aside as of course.
The distinction between a writ of error for matter of law and a writ of error for matter of fact in the procedure of Courts of law (218) furnishes an analgy [analogy].Pearson v. Nesbitt, 12, N.C. Dev. 315, where upon its being made to appear that Jesse A. Pearson, one of the plaintiffs and Jesse A. Pearson one of the defendants was the same person, the Court ordered the judgment to be vacated.
The order and decree complained of, will be set aside. The plaintiff may take an order of reference to W.H. Bagley, Clerk of this Court.
Per curiam.
Decree reversed.